3-30-17 National Doctors Day National Pencil Day PROPERTY A SLIDES 3-30-17 National Doctors Day National Pencil Day

Posted on Course Page by Noon Saturday Music to Accompany E. 13th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996) Posted on Course Page by Noon Saturday Write-Ups of Review Problems 4A, 4B, 4D Assignments for Next Week Assignment Sheet through End of Semester Revised Instructions for Submitting Sample Exam Answers with List of Questions for Second Window

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Primary Panel Responsibilities ACADIA DQ4.07-4.09 (Cont’d Today) Review Problem 4C (Mon 4/3)

Adverse Possession Open & Notorious: Overview (Recap) Focus: Visibility/Notoriety to OO Checking Property Usually Q of Notice not Actual Knowledge Common Test: “Use Visible to one on Surface of Property” Not Concerned with Visibility of APor but of Use Not Concerned with Visibility by Neighbors Many States also allow Evidence of Reputation in Community as Owner –OR-- Availability of Info in Public Records

Adverse Possession Open & Notorious: Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: Marengo Caves Holds that for Undertground AP, Need Actual Knowledge to meet O&N Treat as Non-Binding Precesedent Boundary Disputes & Small Overlap (e.g., 2 feet) Issues Similar to Underground re Notice v. Knowledge See Review Problem 4J (Short Problem for DF in Two Weeks) See Review Problem 4K (Opinion/Dissent for Your Review; Can Do as Sample Q for Second Window)

Acadia DQ4.07: Open & Notorious Evidence Lutz: Garden of Great Depression Pretty Easy Case: Lots Visible Crops w Boundary Logs, Shack, Garage Plus Reputation Evidence Bell: Floating House & Shifting Outhouse If Actual Use Elemet Met, Should Be OK Existence of Small Buildings Unrelated to OO Moving Outhouse Might Help for Periods He’s in Residence in Houseboat

Acadia DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On: Lots!! Visible on Surface: Residence; No Trespass Signs; Bars, Shutters, Padlocks on Cottage; General Maintenance; Comparison to Rest of Community Less Obvious (all forms of Public Record): Payment of Taxes & Insurance; Enforcement ag. Trespassers; Voting Address

Acadia DQ4.07: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Lower court found element of “continuity” not met; thrust was that one month/year insufficient CtApp discussion of evidence really encompasses 3 eements: “actual” & “open & notorious” & “continuous.” Implicitly saying: Incorrect to focus on one month a year for “continuous.” Ps’ use met Actual + O&N because of range of visible and other evidence present all year round.

Acadia DQ4. 09: Open & Notorious Evidence E. 13th St Acadia DQ4.09: Open & Notorious Evidence E. 13th St.: Coalition of Squatters No Real Discussion of Element in Case Problem: Sometimes Use Apparent, Sometimes Not Could Characterize Problem 2 Ways Not Open & Notorious Not Continuous

Qs on “Open & Notorious” Element? Acadia DQ4.09: Open & Notorious Evidence E. 13th St.: Coalition of Squatters Sometimes Use is Apparent, Sometimes Not Could Address as O&N or as Continuous cf. Ray on Gaps in Time: Maybe View as: Summer Use = Normal Use (~Continuity Q) Evidence of Use Even When Gone (~O&N Q) Qs on “Open & Notorious” Element?

ACADIA for Monday: Review Problem 4C Opinion Dissent Q from Spring 2016 What Should O&N Rule Be for Underground AP? Lower Courts Identify 3 Possible Rules: Be Prepared to Argue Pros & Cons of Your Rule Assume Must Be Met for Whole AP Period Assignments by Last Name A-F: Traditional O&N G-O: Sensory Traces on Surface (Duty to Inquire for Reasonable OO) P-Z: Marengo Rule

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Panel Responsibilities Everglades DQ4.10-4.13 Rev. Prob. 4D (me) Rev. Prob. 4E (Tues 4/4)

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) More Common Issue: Also use by OO Less Common Issue: Also use by other third parties (non- owners)

Exclusive (Use by OO) Overview More Common Issue: Use by OO Focus/Relevant Evidence: What did OO do on claimed land during AP period

Exclusive (Use by OO) Overview Fit into AP Purposes Purposes of AP Role of Particular Element Repose Punish Sleeping OO OO not sleeping if using claimed land. Reward Beneficial Use/Labor Protect Connection/ Investment

Exclusive (Use by OO) Overview: Easy Qs Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell) Easy Cases NO: If court treats requirement “literally,” any knowing use by OO defeats AP E.g.: NY Case (S110) 3 Weeks Storage of Construction Materials Defeats Exclusivity Note re Lawyering Note re Strong Anti-AP Approach

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner OO unaware of own interest OO acting with permission of APor. Short/Partial/Ineffective Assertions of OO Rts

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Note 10 (P118): OO Generally Can Break Exclusivity by Physically Excluding APor; OR Suing to Recover BUT Physical exclusion usually insufficient if doesn’t really exclude APor for significant period of time (arguably true in “Rent” and E.13th Street)

Adverse Possession Exclusive (Use by OO): Hard Qs Use by OO, but Not as Owner Short/Partial/Ineffective Assertions of OO Rts Ineffective attempts to bar entry. [When] should limited acts by OO be enough? Policy Q I like!! Tested in Review Problems 4D-4F c. See Miller in Note on S110: Overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

EVERGLADES: DQ4.13: “Exclusive” & the Penn. Statute EGRET IN MANGROVE SWAMP

EVERGLADES: DQ4.13 Exclusive & Penn. Statute §5530(B)(S95) No entry upon real property shall toll the running of the period of limitation specified [21 years], unless a possessory action shall be commenced therefor within one year after entry. What does “toll” mean here?  Effect of this provision? Purpose of this provision? Good idea? Qs on Exclusivity (Use by OO)

Rev. Prob. 4D: (Exclusive: Use by OO) Lot in Q = Farm that is square one-half mile on each side. OO (Kindon) purchases in 1992; no visits or activity until 2002. APor (John) Purchases w Good Faith Color of Title in 1992 Moved onto lot (10/1/92); grew plants for resale for 10-year AP period. 8/02: OO decides to use lot as horse farm; hires G as agent G hired workers who built 1/2-mile fence just inside property line. Fence complete in late Sept.; G inspects lot & finds J & business. G tells K a few days later; K files ejectment action on 10/5/02 Lawsuit too late unless earlier use broke exclusivity

Rev. Prob. 4D: OO Only Use: Hired workers who built 1/2-mile fence just inside property line on 100 Acre lot in last 2 months of Adv. Poss. Period Very Hard to Resolve from Your Materials If jurisdiction accepts literal argument, OO wins. Assume it doesn’t. Look for Arguments/Missing Info

Arguments/Missing Info? EVERGLADES: Rev. Prob. 4E (Tuesday) Last Names A-M (for OO = N) Last Names N-Z (for APor = D) Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it doesn’t Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to other side’s claims. Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element. Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) More Common Issue: Also use by OO Less Common Issue: Also use by other third parties (non-owners)

Exclusive (Use by Other 3d Parties) Overview Need to behave like O vis-à-vis public If you look no different from public, no good FL: use of land by public in way that suggests public right defeats exclusivity of individual APor BUT Penn. case (S110): some limited trespasses by public OK if APor behaving like O Small group working together can jointly AP land BUT if large enough group, looks liked public again, so no good. Sanchez (cited at P116).

Exclusive (Use by Other 3d Parties): DQ4.10: Bell Bell: Floating House & Shifting Outhouse Evidence in Case: 2 families use similarly to Bell No attempt to by Bell to exclude or behave as O E.g., didn’t ask for $ or permission Compare land to houseboat, which he did lease out to someone else Wash SCt say Bell loses b/c not acting like true O Suggests Bell not very different than others So why give him title?

Exclusive (Use by Other 3d Parties): DQ4.10: Bell Bell quoting Wood (103) “Exclusive dominion over land is the essence of possession, and it can exist in unused land if others have been excluded therefrom. A fence is the usual means relied upon to exclude strangers and establish the dominion and control characteristic of ownership.” As much about Actual as Exclusive Fence not only way to establish dominion vis-à-vis strangers!!! Can physically chase away Can grant permission/accept money for use

Exclusive (Use by Other 3d Parties) Overview Fit into AP Purposes Purposes of AP Role of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Worth Rewarding if Acting Along w Other 3d Parties? Protect Connection/ Investment Enough Interest to Protect if Acting Along w Other 3d Parties?

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) More Common Issue: Also use by OO Less Common Issue: Also use by other third parties (non- owners) Qs on Exclusive

ELEMENTS OF ADVERSE POSSESSION Our Sequence Actual Use Open & Notorious Exclusive Continuous Adverse/Hostile Panel Responsibilities Olympic DQ4.14-4.16 Rev. Prob. 4G (ME) Rev. Prob. 4H (Next Thursday)

Adverse Possession Continuous: Overview Focus: Time Used Without Interruption Again Two Issues (We’ll Do Separately) (1) What constitutes sufficient interruption to stop clock? (a) Interruptions by OO (we cover under Exclusive) (b) Interruptions by APor: Legal test often as in Ray: Use like an ordinary owner of similar property (2) Tacking: When can you add the time of successive Os or APors to get to SoL

Continuous: Overview Fit into AP Purposes Purposes of AP Role of Particular Element Repose Enough Time to Merit Repose Punish Sleeping OO Sufficiently Constant Notice; OO who Misses Must Be “Asleep” Reward Beneficial Use/Labor Labor More Likely Beneficial if Activity Continuous, Not Sporadic Protect Connection/ Investment Connections More Likely Strong if Activity Continuous, Not Sporadic

Continuous Overview: Easy Qs, Hard Qs Easy Cases YES: No Interruptions in Use at All Easy Cases NO: Significant Interruption(s) Different from Ordinary User Harder Cases Regular seasonal interruptions See Ray & Rev Prob 4G Irregular interruptions: emergencies etc. See Rev Prob 4H

OLYMPIC: “Continuous” in the Cases DQ4.14-4.16 EEL GLACIER

Court: Same Evidence as for O&N Sufficient to Put OO on Notice Olympic DQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort Court: Same Evidence as for O&N Sufficient to Put OO on Notice Court Says Time Spent was “Most of Colonel Ray’s Leave Time.” Why Relevant?

OlympicDQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Need to check character of disputed lot “Continuous” differs for, e.g., wild & undeveloped land residential agricultural

Pros & Cons of Approving Seasonal Use for AP? Olympic DQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Under Tests Like This, Lots of Cases Say Seasonal Use of Seasonal Property is Sufficiently Continuous E.g., Summer Houses and Ski Cabins (Howard v. Kunto) Generally No Requirement of Evidence of Use in Off-Season Pros & Cons of Approving Seasonal Use for AP?

Pros & Cons of Approving Seasonal Use for AP? Olympic DQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Under Tests Like This, Lots of Cases Say Seasonal Use of Seasonal Property is Sufficiently Continuous Pros & Cons of Approving Seasonal Use for AP? Easier for OO to Miss; Hard Lines to Draw v. APor Shouldn’t Have to do More Than Ord. Owner

Continuous: Seasonal Use Seasonal Use Fit into AP/Continuous Purposes? Purposes of AP Role of Particular Element Repose Enough Time to Merit Repose Punish Sleeping OO Sufficiently Constant Notice; OO who Misses Must Be “Asleep” Reward Beneficial Use/Labor Labor More Likely Beneficial if Activity Continuous, Not Sporadic Protect Connection/ Investment Connections More Likely Strong if Activity Continuous, Not Sporadic

Seasonal Use of Seasonal Property is Sufficiently Continuous Olympic DQ4:15: Continuous Evidence Ray: Creepy Summers in Empty Resort Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Seasonal Use of Seasonal Property is Sufficiently Continuous Generally No Requirement of Evidence of Use in Off-Season Note: Residence in Ray Shorter than Typical Seasonal Use One month v. 2-3 month season (NY Schools Out ~ June 22-Labor Day) Court seems to allow b/c year-round evidence of presence Suggests argument that unusual interruptions OK under test if sufficient evidence of use remains (again blurs O&N/Continuous)

Olympic DQ4:14: Continuous Evidence Other Cases Ray Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” Lutz: Garden of Great Depression? Bell: Floating House & Shifting Outhouse?

Washington List of Elements v. Ours Bell List of Elements (S103) #2: “actual & uninterrupted” = What we would call both “actual” and “continuous”

Continuous: More Hard Cases Ray Test (P98): “Consistent w Acts of Possession that Ordinary Owners of Like Properties would Undertake” This test also creates issues re i) Emergency interruptions ii) Unusually long vacations (if residence or business) Presumably can follow Ray and ask re evidence of use that remains when APor is absent Review Problem 4G (S113)